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denying request for judicial notice where defendant did "not indicate which facts within the exhibits" it sought notice of but rather "simply request[ed] that the court take judicial notice of the documents in their entirety."
Summary of this case from Ironshore Specialty Ins. Co. v. Everest Ins. Co.Opinion
Case No. CV 19-3440 FMO (FFMx)
2020-03-26
Frank CAPACI, et. al., on behalf of himself and all others similarly situated, Plaintiffs, v. SPORTS RESEARCH CORPORATION, Defendant.
Lilach Halperin, Michael T. Houchin, Ronald A. Marron, Law Offices of Ronald A. Marron APLC, San Diego, CA, for Plaintiffs. Norma V. Garcia, Jeffrey Michael Blank, Garcia Rainey Blank and Bowerbank LLP, Costa Mesa, CA, for Defendant.
Lilach Halperin, Michael T. Houchin, Ronald A. Marron, Law Offices of Ronald A. Marron APLC, San Diego, CA, for Plaintiffs.
Norma V. Garcia, Jeffrey Michael Blank, Garcia Rainey Blank and Bowerbank LLP, Costa Mesa, CA, for Defendant.
ORDER RE: MOTION TO DISMISS PLAINTIFFS' FIRST AMENDED CLASS ACTION COMPLAINT
Fernando M. Olguin, United States District Judge
Having reviewed the briefing filed with respect to defendant Sports Research Corporation's ("defendant") Motion to Dismiss the First Amended Class Action Complaint ("FAC"), (Dkt. 31, "MTD"), the court finds that oral argument is not necessary to resolve the motion, see Fed. R. Civ. P. 78 ; Local Rule 7-15; Willis v. Pac. Mar. Ass'n, 244 F.3d 675, 684 n. 2 (9th Cir. 2001), and concludes as follows.
BACKGROUND
On April 26, 2019, plaintiff Frank Capaci ("Capaci") filed this putative class action lawsuit, alleging that defendant falsely claims that its dietary supplement, "Sports Research Garcinia Cambogia," is an effective aid in "weight management" and "appetite control." (See Dkt. 1, Complaint at ¶ 1). On June 17, 2019, Capaci filed the operative First Amended Class Action Complaint, (Dkt. 16, "FAC"), which added Cynthia Ford ("Ford" and with Capaci, "plaintiffs") as a class representative.
In their FAC, plaintiffs claim that defendant misleadingly marketed a dietary supplement called "Sports Research Garcinia Cambogia" ("the Product") as an effective aid in "weight management" and "appetite control." (See Dkt. 16, FAC at ¶¶ 1 & 26). Plaintiffs filed this class action lawsuit on behalf of themselves and "all purchasers of [defendant's] brand weight-loss supplement ‘Garcinia Cambogia[.]’ " (Id. at ¶ 13). Plaintiffs assert causes of action for: (1) violation of California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code §§ 17200, et seq. ; (2) violation of California's False Advertising Law ("FAL"), Cal. Bus. & Prof. Code §§ 17500, et seq. ; (3) violation of California's Consumer Legal Remedies Act ("CLRA"), Cal. Civ. Code §§ 1750, et seq. ; (4) Breach of express warranties, Cal. Com. Code § 2313(1) ; (5) breach of implied warranties, Cal. Com. Code § 2314 ; (6) Negligent misrepresentation; (7) violation of New Jersey's Consumer Fraud Act, N.J.S.A. §§ 56:8-1, et seq. ; and (8) violation of the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act ("TCCWNA"), N.J. Stat. §§ 56:12-14 to 56:12-18. (Dkt. 16, FAC at ¶¶ 90-165).
Capaci is a New Jersey resident who purchased the Product for personal use from two different GNC stores in New Jersey. (See Dkt. 16, FAC at ¶ 9). He paid approximately $25 for the Product. (See id. ). In deciding to purchase the Product, Capaci relied on defendant's "representations and warranties that the Product was safe and effective for appetite control and weight management as advertised." (Id. ). Plaintiffs allege that Capaci would not have purchased the Product "had he known the representations were false." (Id. ). He "would consider purchasing the product again," however, "if the advertising statements made on the Product labels were, in fact, truthful and represented in a manner as not to deceive consumers." (Id. ).
Ford is a California resident who purchased the Product for personal use from a Vitamin Shoppe, spending "approximately $20.00 to $25.00" on the Product. (See FAC at ¶ 10). Like Capaci, Ford claims she relied on defendant's representations that the Product was "safe and effective for appetite control and weight management" when deciding to purchase the product. (Id. ). She claims she would purchase the product again if the advertising statements on the product were truthful. (See id. ).
The Product is a dietary supplement that is "made with 65% [hydroxycitric acid (HCA) ] & coconut oil." (Dkt 16, FAC at ¶¶ 21 & 22). The left-side label of the Product states, "the active component in Garcinia Cambogia studied for its potential to suppress appetite." (Id. at ¶ 22). The label continues, "[a]long with diet and exercise, Garcinia Cambogia is a great way to support your overall weight management plan." (Id. at ¶ 20, images of label). In large yellow font, the label reads, "Supports Appetite Control[.]*" (Id. ). The asterisk directs the reader to the following message: "These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease." (Id. ). The right-side label lists three ingredients under "Supplement Facts": (1) "Garcinia Cambogia [fruit rind] extract standardized to 65% HCA[;]" (2) "Total hydroxycitric acid (HCA)[;]" and (3) "Extra Virgin Organic Coconut Oil." (Id. ). Text near the bottom of the right-side label states that "Sports Research Garcinia Cambogia should always be taken in conjunction with a healthy diet and regular exercise program." (Id. ).
Plaintiffs allege that "Defendant's [ ] ‘Appetite Control’ and ‘Weight Management’ claims convey that the Product is capable of helping consumers lose weight and will actually help consumers lose weight, by suppressing appetite." (Dkt. 16, FAC at ¶ 26). In plaintiffs' view, "the claims on the packaging of the Product convey the concrete overall message that the Product by means of its HCA, can effectively help consumers lose weight." (Id. at ¶ 27). Plaintiffs allege that this message is misleading because "the Product's only ‘active’ ingredients are incapable of providing any weight-loss benefits." (Id. at ¶ 26). Plaintiffs point to studies to support their claim about the ineffectiveness of the Product at producing weight-loss benefits. For instance, the Heymsfield study, conducted by a group of researchers at Columbia University in 1998, "found that a Garcinia extract failed to produce a significant loss of weight and fat mass beyond that observed with placebo." (Id. at ¶¶ 29 & 30). Plaintiffs also cite a "systematic review of prior meta-analyses and clinical trials of a variety of over-the-counter weight loss aids" whose results indicated that "none of the weight loss aids worked, including the Garcinia cambogia products reviewed." (Id. at ¶ 32).
Plaintiffs also reference a study indicating that HCA, another active ingredient in the Product, did "not increase total fat oxidation in vivo in endurance-trained humans." (Dkt. 16, FAC at ¶ 34). Additionally, the Mayo Clinic website indicates "[t]here is no evidence that coconut oil[, another active ingredient in the Product,] will have a beneficial effect on weight loss[.]" (Id. at ¶ 45). Plaintiffs cite several other studies that indicate that the active ingredients in the Product have no effect on weight loss or body fat percentage. (See id. at ¶¶ 36-43). Finally, plaintiffs allege that the FDA's Office of Dietary Supplements "concludes that based on research findings, that ‘Garcinia cambogia has little to no effect on weight loss.’ " (Id. at ¶ 44).
LEGAL STANDARD
A motion to dismiss for failure to state a claim should be granted if plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly (Twombly ), 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007) ; Ashcroft v. Iqbal (Iqbal ), 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) ; Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 ; Cook, 637 F.3d at 1004 ; Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010). Although the plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," Twombly, 550 U.S. at 555, 127 S.Ct. at 1965 ; Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 ; see also Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004), cert. denied, 544 U.S. 974, 125 S.Ct. 1828, 161 L.Ed.2d 724 (2005) ("[T]he court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged. Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.") (citations and internal quotation marks omitted), "[s]pecific facts are not necessary; the [complaint] need only give the defendant[s] fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (per curiam ) (citations and internal quotation marks omitted); Twombly, 550 U.S. at 555, 127 S.Ct. at 1964.
In considering whether to dismiss a complaint, the court must accept the allegations of the complaint as true, Erickson, 551 U.S. at 93-94, 127 S.Ct. at 2200 ; Albright v. Oliver, 510 U.S. 266, 267, 114 S.Ct. 807, 810, 127 L.Ed.2d 114 (1994) (plurality opinion), construe the pleading in the light most favorable to the pleading party, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969) ; Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). Dismissal for failure to state a claim can be warranted based on either a lack of a cognizable legal theory or the absence of factual support for a cognizable legal theory. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A complaint may also be dismissed for failure to state a claim if it discloses some fact or complete defense that will necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984). Moreover, where a complaint includes allegations of fraud, Federal Rule of Civil Procedure 9(b) requires that those allegations be pled with particularity. See Fed. R. Civ. P. 9(b) ("In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake."). "To comply with Rule 9(b), allegations of fraud must be specific enough to give defendants notice of the particular misconduct which is alleged to constitute the fraud charged so that they can defend against the charge and not just deny that they have done anything wrong." Bly-Magee v. Cal., 236 F.3d 1014, 1019 (9th Cir. 2001) (internal citations and quotation marks omitted). The complaint must set out the "time, place and specific content of the false representations as well as the identities of the parties to the misrepresentations." Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam ) (internal quotation marks omitted). "Averments of fraud must be accompanied by the who, what, when, where, and how of the misconduct charged." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (internal citation and quotation marks omitted). "[A] plaintiff must set forth more than the neutral facts necessary to identify the transaction. The plaintiff must set forth what is false or misleading about a statement, and why it is false." Id.. (internal citation and quotation marks omitted). "It is established law, in this circuit and elsewhere, that Rule 9(b)'s particularity requirement applies to state-law causes of action." Id. at 1103.
All further "Rule" references are to the Federal Rules of Civil Procedure unless otherwise indicated.
DISCUSSION
I. REQUESTS FOR JUDICIAL NOTICE.
Both sides ask the court to take judicial notice of various exhibits. (See Dkt. 31-2, Defendant Sports Research Corporation's Request for Judicial Notice in Support of Motion to Dismiss First Amended Class Action Complaint ("Defendant's RJN"); Dkt. 32-2, Plaintiffs' Request for Judicial Notice in Support of Plaintiffs' Opposition to Defendant's Second Motion to Dismiss the First Amended Complaint ("Plaintiffs' RJN"); Dkt. 33-6, Defendant Sports Research Corporation's Request for Judicial Notice in Support of Reply ("RJN ISO Reply")). Defendant requested judicial notice of eight exhibits, consisting of the label of the Product, a page on defendant's website, and the full text of several of the studies referenced in the FAC. (See Dkt. 31-2, Defendant's RJN). Plaintiffs seek judicial notice of five exhibits – all "studies referenced in Plaintiffs' [FAC]." (See Dkt. 32-2, Plaintiffs' RJN).
"[F]ederal courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion [to a motion for summary judgment], or to reject it or simply not consider it." Wright & Miller, 5C Fed. Prac. & Proc. Civ. § 1366, at 159 (3d ed. 2004). At the motion to dismiss stage, a court may consider documents outside the pleadings on the basis of one or both of the following doctrines: judicial notice and incorporation-by-reference. See Fed. R. Evid. 201 (judicial notice); Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002-03 (9th Cir. 2018), cert. denied, ––– U.S. ––––, 139 S.Ct. 2615, 204 L.Ed.2d 264 (2019) (incorporation-by-reference doctrine). In their respective RJNs, neither party provides a clear explanation of the legal basis for their request. (See, generally, Dkt. 31-2, Defendant's RJN; Dkt. 32-2, Plaintiffs' RJN; Dkt. 33-6, RJN ISO Reply).
Facts subject to judicial notice are those which are either "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(1)-(2). "A court must also consider – and identify – which fact or facts it is noticing" under Federal Rule of Evidence 201. Khoja, 899 F.3d at 999. "Just because the document itself is susceptible to judicial notice does not mean that every assertion of fact within that document is judicially noticeable for its truth." Id. Here, defendant does not indicate which facts within the exhibits it asks the court to judicially notice. (See, generally, Dkt. 31-2, Defendant's RJN). Rather, it simply requests that the court take judicial notice of the documents in their entirety. (See id. ) (Defendant "hereby requests, pursuant to Federal Rules of Evidence 201, that this Court take judicial notice of the following documents[.]"). Because defendant does not identify which facts within the exhibits it asks the court to judicially notice nor does it explain why the court can judicially notice those facts, the court denies defendant's request for judicial notice.
Defendant notes that each exhibit of which it requests judicial notice was cited in the FAC. (See Dkt. 31-2, Defendant's RJN). But even assuming defendant was seeking to have the court consider the subject exhibits under the incorporation-by-reference doctrine, the doctrine does not, under the circumstances here, justify the court's reliance on these exhibits any more than the doctrine of judicial notice does. "Unlike rule-established judicial notice, incorporation-by-reference is a judicially created doctrine that treats certain documents as though they are part of the complaint itself." Khoja, 899 F.3d at 1002. "[A] defendant may seek to incorporate a document into the complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." Id. (internal quotations marks omitted). The "mere mention of the existence of a document is insufficient to incorporate the contents of a document[.]" Id. (internal citations and quotation marks omitted). Here, it appears that each exhibit is mentioned only once or twice in the FAC. Because the documents are each mentioned only briefly in the FAC, the court will not incorporate them by reference in evaluating defendant's MTD.
This analysis applies with equal force to plaintiffs' RJN. Like defendant, plaintiffs ask the court to judicially notice studies cited in the FAC, but do not state which facts within those studies they want the court to judicially notice. (See, generally, Dkt. 32-2, Plaintiffs' RJN). Further, the studies, which were not attached to FAC, are only briefly mentioned in the FAC. (See, generally, Dkt. 16, FAC). In short, the court will not reference documents outside the pleadings; it will limit its discussion to what is alleged in the FAC.
II. WHETHER THE FDCA PREEMPTS PLAINTIFFS' STATE LAW CLAIMS.
Turning to the substance of the MTD, defendant first argues that the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 301, et seq., expressly preempts plaintiffs' claims "because (1) state-law requirements for claims about dietary supplements differ from the FDCA requirements, and (2) Plaintiffs seek to impose a disclosure requirement on structure/function claims that is inconsistent with federal food labeling requirements." (Dkt. 31-1, Memorandum of Points and Authorities in Support of Defendant['s] Motion to Dismiss First Amended Class Action Complaint ("Memo.") at 7).
"Federal preemption occurs when: (1) Congress enacts a statute that explicitly pre-empts state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative field to such an extent that it is reasonable to conclude that Congress left no room for state regulation in that field." Chae v. SLM Corp., 593 F.3d 936, 941 (9th Cir. 2010) (internal quotation marks omitted). When analyzing the scope of a preemption statute, a court's analysis must "start with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700 (1996) (internal quotation marks omitted). Such an approach "is consistent with both federalism concerns and the historic primacy of state regulation of matters of health and safety." Id. Accordingly, "[p]arties seeking to invalidate a state law based on preemption bear the considerable burden of overcoming the starting presumption that Congress does not intend to supplant state law." Stengel v. Medtronic Inc., 704 F.3d 1224, 1227 (9th Cir. 2013) (en banc ) (internal quotation marks omitted).
A. The Statutory and Regulatory Framework.
The FDCA "gives the FDA the responsibility to protect the public health by ensuring that ‘foods are safe, wholesome, sanitary, and properly labeled[.]’ " Lockwood v. Conagra Foods, Inc., 597 F.Supp.2d 1028, 1030 (N.D. Cal. 2009) (quoting 21 U.S.C. § 393(b)(2)(A) ). "Section 331 [of the FDCA] expressly prohibits the misbranding of food in interstate commerce, while Section 343 sets forth conditions under which food is considered ‘misbranded’[.]" Bruton v. Gerber Prods. Co., 961 F.Supp.2d 1062, 1079 (N.D. Cal. 2013), rev'd on other grounds, 703 F.Appx. 468 (9th Cir. 2017) (internal quotation marks and citations omitted). "In general, food is ‘misbranded’ if its labeling is ‘false or misleading in any particular.’ " Id. (quoting 21 U.S.C. § 343(a)(1) ). The Nutrition Labeling and Education Act of 1990 ("NLEA"), Pub L. No. 101-535, 104 Stat. 2353 (1990), amended the FDCA and aimed to "clarify and ... strengthen the [FDA's] legal authority to require nutrition labeling on foods, and to establish the circumstances under which claims may be made about nutrients in foods." H.R. Rep. No. 101-538, (1990), reprinted in 1990 U.S.C.C.A.N. 3336, 3337. In addition, part of its "purpose was to ‘create uniform national standards regarding the labeling of food." Bruton, 961 F.Supp.2d at 1079 (internal quotation marks omitted).
The FDCA and NLEA expressly preempt any state or local law that establishes "any requirement respecting any claim of the type described in section 343(r)(1) of this title made in the label or labeling of food that is not identical to the requirement of section 343(r) of this title." 21 U.S.C. § 343-1(a)(5). Section 343(r)(6), which sets forth rules governing statements made about dietary supplements, falls under subsection (r)(1)'s umbrella. See id. § 343(r)(6) ("For purposes of paragraph (r)(1)(B), a statement for a dietary supplement may be made if ...."). Therefore, " § 343-1(a)(5) preempts state-law requirements for claims about dietary supplements that differ from the FDCA's requirements." Dachauer v. NBTY, Inc., 913 F.3d 844, 848 (9th Cir. 2019). Thus, the court must determine whether the state law requirements plaintiffs invoke in this case differ from the FDCA's requirements.
"For dietary supplements, the FDCA distinguishes between ‘disease claims’ and ‘structure/function claims’ that manufacturers make about their products." Dachauer, 913 F.3d at 846. "A structure/function claim ‘describes the role of a nutrient or dietary ingredient intended to affect the structure or function in humans’ or ‘characterizes the documented mechanism by which a nutrient or dietary ingredient acts to maintain such a structure or function,’ but ‘may not claim to diagnose, mitigate, treat, cure, or prevent a specific disease or class of diseases.’ " Id. (quoting 21 U.S.C. § 343(r)(6) ). By contrast, when a manufacturer makes a disease claim about a product, it "claims to diagnose, mitigate, treat, cure, or prevent disease." 21 C.F.R. § 101.93(g)(2)(ii). Structure/function claims must meet three requirements: (1) the manufacturer has substantiation that the statement is truthful and not misleading; (2) the statement contains a prominent disclaimer that the FDA has not evaluated the statement and that the product "is not intended to diagnose, treat, cure, or prevent any disease"; and (3) the statement itself does not "claim to diagnose, mitigate, treat, cure, or prevent" disease. 21 U.S.C. § 343(r)(6). The FDCA regulations state that a food label "shall be deemed to be misleading if it fails to reveal facts" that are "[m]aterial with respect to consequences which may result from use of the article under [ ] the conditions prescribed in such labeling [or] such conditions of use as are customary or usual." 21 C.F.R. § 1.21(a)(2).
The FDA has published guidance discussing, among other things, acceptable structure/function claims. See Regulation on Statements Made for Dietary Supplements Concerning the Effect of the Product on the Structure or Function of the Body, 65 Fed. Reg. 1000-01 (Jan. 6, 2000) ; see also Dachauer, 913 F.3d at 847. "The guidance recognizes that structure/function claims may use general terms such as ‘strengthen,’ ‘improve,’ and ‘protect,’ as long as the claims do not suggest disease prevention or treatment." Dachauer, 913 F.3d at 847 (some internal quotation marks omitted). "The guidance further explains that manufacturers of supplements can substantiate structure/function claims with evidence of an effect on a small aspect of the related structure/function, rather than with evidence of an effect on the main disease that consumers might associate with a given bodily structure or function." Id.
Through the "Sherman Law," California has formally adopted the federal labeling requirements as its own. See Cal. Health & Safety Code § 110100(a) ("All food labeling regulations and any amendments to those regulations adopted pursuant to the federal act, in effect on January 1, 1993, or adopted on or after that date shall be the food labeling regulations of this state."). The state "has also enacted a number of laws and regulations that adopt and incorporate specific enumerated federal food laws and regulations." Bruton, 961 F.Supp.2d at 1080 (citing Cal. Health & Safety Code § 110670, which provides that "[a]ny food is misbranded if its labeling does not conform with the requirements for nutrient content or health claims as set forth in [the FDCA]").
Although the FDCA requires manufacturers to have substantiation for their structure/function claims, California law does not allow private plaintiffs to demand substantiation for advertising claims. Nat'l Council Against Health Fraud, Inc. v. King Bio Pharm., Inc., 107 Cal.App.4th 1336, 1345, 133 Cal.Rptr.2d 207 (2003) ("The Legislature has expressly permitted prosecuting authorities, but not private plaintiffs, to require substantiation of advertising claims."). Instead, "a plaintiff in a false advertising or unlawful competition action has the burden of producing evidence that the challenged advertising claim is false or misleading." Id. at 1344, 133 Cal.Rptr.2d 207.
B. Plaintiffs' Claims.
Plaintiffs bring claims under California's UCL, FAL, and CLRA, which prohibit (1) false advertising and (2) advertising that is literally true, but which is "actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public." See Dachauer, 913 F.3d at 846 (internal quotation marks omitted). Plaintiffs claim that defendant violated these statutes by making misleading claims about the Product and thereby deceiving a reasonable consumer. (See Dkt. 16, FAC at ¶ 93); see also Williams v. Gerber Products Co., 552 F.3d 934, 938 (9th Cir. 2008) (explaining that the UCL and CLRA use the "reasonable consumer test"). "Under the reasonable consumer test, [plaintiffs] must show that members of the public are likely to be deceived." Williams, 552 F.3d at 938 (internal quotation marks omitted). The parties dispute whether plaintiffs' claims that the Product's label is false and misleading are preempted by the FDCA. Specifically, defendant contends that plaintiffs' claims are actually lack of substantiation claims in the guise of claims for false advertising. (See Dkt. 31-1, Memo. at 10-13).
Defendant also argues that the FDCA preempts plaintiffs' claims under New Jersey law. (See Dkt. 31-1, Memo. at 10). Defendant's analysis focuses almost exclusively on the California statutes and California case law, however. (See, generally, id. at 7-13). The court reminds the parties that "[i]t is not the role of the [c]ourt to make the parties' arguments for them." McClain v. Wells Fargo Bank, N.A., 2012 WL 851402, *3 (N.D. Cal. 2012). Given the dearth of argument specific to plaintiffs' claims under New Jersey law, the court rejects any contention by defendant that the FDCA preempts plaintiffs' New Jersey claims.
In Dachauer, the Ninth Circuit, in reviewing a grant of summary judgment, concluded that the FDCA preempted the plaintiff's state law claims that defendants' structure/function claims for vitamin E supplements were false and misleading. 913 F.3d at 848. The defendants in Dachauer sold vitamin E supplements that they claimed "support cardiovascular health" and "promote [ ] immune function," "immune health," "heart health," and "circulatory health." Id. at 846. Although the defendants claimed the supplements "support[ed] cardiovascular health," plaintiff's evidence showed that the defendants' supplements "fail to prevent cardiovascular disease ." Id. at 848 (emphasis added). The plaintiff thus "argued that evidence proving the supplement did not prevent heart disease actually supported his structure/function claims that the supplement did not improve heart health." Sonner v. Schwabe N. Am., Inc., 2019 WL 7173149, *3 (C.D. Cal. 2019) (citing Dachauer, 913 F.3d at 848 ). "The court rejected this argument, finding that the FDCA does not require manufacturers to substantiate their structure/function claims with disease evidence[.]" Sonner, 2019 WL 7173149, at *3 (citing Dachauer, 913 F.3d at 848 ). The Dachauer court concluded that plaintiff's claim with respect to the "cardiovascular health" claim was preempted. See 913 F.3d at 848 ("We hold that § 343-1(a)(5) preempts Plaintiff's claims to the extent that he argues that Defendants' structure/function claims are false or misleading because their supplements do not prevent cardiovascular disease."). However, the Dachauer court also found that some of the plaintiff's claims concerning the defendants' claim about "immune health" were not preempted. See 913 F.3d at 849. Specifically, the Court held that "the FDCA does not preempt Plaintiff's claim that Defendants' structure/function claim about immune health is misleading because their supplements increase the risk of all-cause mortality." Id. (emphasis in original). The Dachauer Court explained that the FDCA regulations deem food labels misleading where they "fail[ ] to reveal facts that are material with respect to the consequences which may result from use of the article[.]" Id. (citing 21 C.F.R. § 1.21(a)(2) ) (internal quotation marks omitted). The court determined that the defendants' failure to disclose an increased risk of mortality resulting from taking a supplement that claimed to support immune health was misleading under the FDCA and California law. Id. Because the state and federal requirements were the same, the Dachauer court concluded that the claim was not preempted. See id.
Defendant points to two post- Dachauer cases – Kroessler v. CVS Health Corp., 387 F.Supp.3d 1064 (S.D. Cal. 2019) and Korolshteyn v. Costco Wholesale Corp., 393 F.Supp.3d 1019 (S.D. Cal. 2019) – to support its argument that the FDCA preempts plaintiffs' claims. (See Dkt. 31-1, Memo. at 10-12). "In both Kroessler and Korolshteyn, the court interpreted Dachauer to stand for the proposition that a state false advertising claim is preempted where ‘Plaintiff does not claim that Defendants' products are harmful as opposed to useless.’ " Sonner, 2019 WL 7173149, at *4 (quoting Korolshteyn, 393 F.Supp.3d at 1024 ). Indeed, these cases read Dachauer to "suggest that only claims of affirmative harm can avoid preemption under the FDCA." Id. at *5 (emphasis in original). This court agrees with the Sonner court in concluding that the Ninth Circuit "did not rule so narrowly" in Dachauer. Id. Dachauer's ultimate holding was that "a plaintiff's claims are preempted where he seeks to support his allegations that a manufacturer's structure/function claims are false with evidence that is not required for substantiation of a structure/function claims under 343(r)." Greenberg v. Target Corp., 402 F.Supp.3d 836, 840 (N.D. Cal. 2019).
Here, unlike in Dachauer, there is no "mismatch" between the type of claim defendant makes about the Product and the evidence plaintiffs cite to show defendant's claim is false and misleading. In other words, plaintiffs are not using disease evidence to rebut defendant's structure/function claim on the Product's label. Instead, plaintiffs cite multiple studies that indicate that the Product has no effect on the structure and function of the body in that the Product is incapable of "provid[ing] weight-loss or appetite control benefits in humans." (See, e.g., Dkt. 16, FAC at ¶ 28). Because plaintiffs attack defendant's structure/function claim with evidence related to structure and function, the Ninth Circuit's concern about mismatched evidence, see Dachauer, 913 F.3d at 848, does not apply here.
Relatedly, defendant argues that plaintiffs' state law claims constitute lack of substantiation claims, which are not permissible under California or New Jersey law. (See Dkt. 31-1, Memo. at 10-13). The court disagrees. "In the false advertising context, an advertising claim is false if it has actually been disproved, that is, if the plaintiff can point to evidence that directly conflicts with the claim." Nathan v. Vitamin Shoppe, Inc., 2019 WL 1200554, *3 (S.D. Cal. 2019) (internal quotation marks omitted). By contrast, lack of substantiation claims "arise[ ] where, absent any evidence suggesting a representation is false or misleading, a plaintiff demands a defendant either ‘put up or shut up.’ " Mullins v. Premier Nutrition Corp., 178 F.Supp.3d 867, 876 (N.D. Cal. 2016).
Here, plaintiffs cite multiple studies indicating that defendant's claim that the Product "supports weight management" and provides appetite control benefits are false and misleading. (See Dkt.16, FAC at ¶¶ 28-45). Specifically, as alleged in the FAC, the studies indicate that the active ingredients in the Product produce no greater weight loss, percentage change in body fat, fat oxidation, or change in "appetitive variables" than a placebo, and thus have no effect on weight management or appetite. (See id. ). At the motion to dismiss stage, plaintiffs' burden is merely to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974. Here, plaintiffs have stated a valid claim that defendant's claims about the Product are false and misleading. Because plaintiffs have sufficiently alleged that defendant's structure/function claims about the Product are false and misleading, the court concludes that the FDCA does not preempt plaintiffs' claims under the California law.
Throughout the FAC, plaintiffs allege that one of the expected benefits from the Product is "weight loss." (See, e.g., Dkt. 16, FAC at ¶¶ 1, 3, 26, 28). But the Product's label does not explicitly promise "weight loss" benefits; rather, it promises "weight management" and "appetite control." (See id. at ¶¶ 22-24, 26). By combining the terms "weight management" with "appetite control" defendant appears to convey an implicit message to consumers that the Product will support weight loss, but it is important to note that defendant does not actually use the term "weight loss" on the Product label.
III. WHETHER THE FDA HAS PRIMARY JURISDICTION.
"Primary jurisdiction is a prudential doctrine that permits courts to determine ‘that an otherwise cognizable claim implicates technical and policy questions that should be addressed in the first instance by the agency with regulatory authority over the relevant industry rather than by the judicial branch.’ " Astiana v. Hain Celestial Group, Inc., 783 F.3d 753, 760 (9th Cir. 2015) (internal quotation marks omitted). Courts consider the following non-exhaustive factors in deciding whether the doctrine applies: "(1) the need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration." Syntek Semiconductor Co., Ltd. v. Microchip Tech., Inc., 307 F.3d 775, 781 (9th Cir. 2002).
"Not every case that implicates the expertise of federal agencies warrants invocation of primary jurisdiction. Rather, the doctrine is reserved for a limited set of circumstances that requires resolution of an issue of first impression, or of a particularly complicated issue that Congress has committed to a regulatory agency." Astiana, 783 F.3d at 760 (internal quotation marks omitted). The Ninth Circuit has stated that "even when agency expertise would be helpful, a court should not invoke primary jurisdiction when the agency is aware of but has expressed no interest in the subject matter of the litigation[,]" or when "referral to the agency would significantly postpone a ruling that a court is otherwise competent to make." Id. at 761. Courts should also take into account "whether invoking primary jurisdiction would needlessly delay the resolution of claims." Id. at 760.
If a court determines that the doctrine of primary jurisdiction applies, it must either stay the case pending an administrative ruling or dismiss the case without prejudice. See Astiana, 783 F.3d at 761. "When the purpose of primary jurisdiction is for parties to pursue their administrative remedies, a district court will normally dismiss the case without prejudice. However, when a court invokes primary jurisdiction but further judicial proceedings are contemplated, then jurisdiction should be retained by a stay of proceedings, not relinquished by a dismissal." Id. (internal quotation marks and citation omitted). "In either circumstance, the district court must be attuned to the potential prejudice arising from the dismissal of claims." Id.
Defendant argues that "the FDA's expertise and uniformity in administration is needed" because "this action fundamentally challenges the ability of any manufacturer or distributor to sell GCE products[.]" (Dkt. 31-1, Memo. at 14) (emphasis in original). The court disagrees. First, plaintiffs' claims present a "typical false advertising case well within the province of the courts because allegations of deceptive labeling do not require the expertise of the FDA to be resolved in the courts, as every day courts decide whether conduct is misleading." Nathan, 2019 WL 1200554, *6 (internal quotation marks omitted). Second, the court disagrees that this case "fundamentally challenges the ability of any manufacturer or distributor to sell" the Product. (See Dkt. 31-1, Memo. at 14) (emphasis in original). Rather, plaintiffs' claims concern defendant's allegedly misleading labeling with promises of "weight management" and "appetite control," a determination this court is equipped to make. See Nathan, 2019 WL 1200554, at *6.
IV. WHETHER PLAINTIFFS LACK STANDING.
Defendant contends that plaintiffs lack standing to pursue injunctive relief because (1) they do not allege an intent to purchase the Product again and (2) they fail to allege a sufficient causal connection between their alleged injuries and defendant's allegedly deceptive acts. (See Dkt. 31-1, Memo. at 15-17).
A. Plaintiffs' Intent to Purchase the Product Again.
With regard to plaintiffs' intent to purchase the Product again, defendant argues that plaintiffs cannot pursue injunctive relief against false advertising or labeling where, as here, plaintiffs allege the product is "worthless." (See Dkt. 31-1, Memo. at 15; Dkt. 16, FAC at ¶¶ 68 & 72). "A plaintiff must demonstrate constitutional standing separately for each form of relief requested." Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir.), cert. denied, ––– U.S. ––––, 139 S.Ct. 640, 202 L.Ed.2d 492 (2018). Where, as here, a plaintiff seeks injunctive relief, the threat of injury must be actual and imminent, not conjectural or hypothetical. Id. "[T]he threatened injury must be certainly impending to constitute injury in fact and allegations of possible future injury are not sufficient." Id. (emphasis in original) (internal quotation marks omitted). "[A] previously deceived consumer may have standing to seek an injunction against false advertising or labeling, even though the consumer now knows or suspects that the advertising was false at the time of the original purchase, because the consumer may suffer an actual and imminent, not conjectural or hypothetical threat of future harm." Id. at 969 (internal quotation marks omitted). "[T]he threat of future harm may be the consumer's plausible allegations that she will be unable to rely on the product's advertising or labeling in the future, and so will not purchase the product again although she would like to." Id. at 969-70.
The court will require plaintiffs to clarify their allegations with respect to their request for injunctive relief, i.e., whether the threat of being harmed by allegedly false advertising is "actual and imminent, not conjectural or hypothetical threat of future harm" from defendant's allegedly false advertising. Davidson, 889 F.3d at 969 (internal quotation marks omitted). On the one hand, plaintiffs allege that the Product is "worthless." (See Dkt. 16, FAC at ¶ 68). Such allegations cause the court to question whether and why plaintiffs would purchase the Product again, thereby exposing themselves to future harm. On the other hand, plaintiffs allege that they would "consider purchasing the Product again if the advertising statements made on the Product labels were, in fact, truthful and represented in a manner as not to deceive consumers." (Dkt. 16, FAC at ¶¶ 9 & 10). Plaintiffs may be alleging that they "will be unable to rely on the product's advertising or labeling in the future, and so will not purchase the product again although [they] would like to." Davidson, 889 F.3d at 969-70. Under the circumstances, the court will grant plaintiffs one final opportunity to amend their FAC to clarify their allegations relating to their request for injunctive relief. Plaintiffs should also clarify whether they are seeking public injunctive relief under the CLRA, FAL and/or UCL. See, e.g., Blair v. Rent-A-Center, Inc., 928 F.3d 819, 822 (9th Cir. 2019) ; McGill v. Citibank, N.A., 2 Cal. 5th 945, 956, 216 Cal.Rptr.3d 627, 393 P.3d 85 (2017).
B. Causal Connection Between Plaintiffs' Alleged Injuries and Defendant's Allegedly Deceptive Acts.
Defendant further argues that plaintiffs "lack Article III standing to pursue their claims" because plaintiffs cannot show that defendant's alleged misrepresentations caused plaintiffs harm. (See Dkt. 31-1, Memo. at 16-17). Defendant primarily takes issue with plaintiffs' claim that, based on the claims on the Product's label, plaintiffs believed they would receive weight loss and appetite control benefits from the Product. (See id. at 16). But plaintiffs' alleged harm is that, based on defendant's claims on the Product's label, they purchased a product they otherwise would not have purchased. This is sufficient to allege harm. See, e.g., DePhillippis v. Living Essentials, LLC, 2018 WL 7051065, *2 (S.D. Cal. 2018) ("Plaintiff can show Article III standing by alleging she purchased a product she otherwise would not have purchased[.]").
Because defendant's arguments in section VIII of the Memo. essentially reprise this causation argument, (see Dkt. 31-1, Memo. at 21) ("For all the reasons Plaintiffs cannot satisfy Article III as set forth in Section VI-B above, Plaintiffs fail to plead reliance and causation with the requisite specificity."), the court need not address them again. The court concludes that plaintiffs' causation allegations are sufficient.
V. WHETHER PLAINTIFFS FAILED TO ALLEGE SUFFICIENT FACTS TO STATE A CLAIM.
In arguing that plaintiffs failed to state a claim, defendant seeks to rebut the substance of plaintiff's allegations that the Product's label is false and misleading. (See Dkt. 31-1, Memo. at 17-21). To do this, defendant analyzes many of the studies plaintiffs cite in the FAC, contending that they do not establish actual falsity. (See, e.g., Dkt. 31-1, Memo. at 19) ("The studies to which Plaintiffs cite, however, do not even pertain to weight management or appetite control, let alone an overall weight management plan in conjunction with diet and exercise."). Because the court denied defendant's request for judicial notice, see supra at § I, the court will not consider the parties' arguments on this score, which rely on portions of the studies not mentioned in the FAC. Even if the court were to take judicial notice of the full text of the studies, the court would decline to weigh the evidence at the motion to dismiss stage. See Nathan, 2019 WL 1200554, at *4 ("[T]he issue of whether the proffered studies do in fact show that the Product's representations are provably false is a question not properly decided on a motion to dismiss.") (internal quotation marks omitted). In any event, the court is satisfied that plaintiffs have alleged sufficient facts to state a plausible claim that defendant's claims on the Product's label were false and misleading. See, e.g., id. ("Therefore, because Plaintiff cites to studies supporting her position that HCA does not impact appetite control or weight management, as the Product promises, Plaintiff's claims are facially plausible and do not merely allege a lack of substantiation.").
VI. WHETHER PLAINTIFFS' CLAIMS UNDER NEW JERSEY LAW SHOULD BE DISMISSED.
To prevail under New Jersey's Consumer Fraud Act ("CFA"), a plaintiff must demonstrate (1) unlawful conduct by defendant; (2) an "ascertainable loss by plaintiff"; and (3) a causal link between the two. Dugan v. TGI Fridays, Inc., 231 N.J. 24, 52, 171 A.3d 620 (2017) (internal quotation marks omitted). Defendant contends that plaintiffs failed to sufficiently allege both an "ascertainable loss" and causation. (Dkt. 31-1, Memo. at 21-22).
The only reason defendant provides for dismissing the TCCWNA claim is that plaintiffs cannot maintain their TCCWNA claim if their Consumer Fraud Act claim is dismissed. (See Dkt. 31-1, Memo. at 22). Because plaintiffs' Consumer Fraud Act claim survives defendant's MTD, so does their TCCWNA claim.
To properly plead "ascertainable loss" under the CFA, plaintiffs' "loss must be capable of calculation, and not just hypothetical or illusory." Mladenov v. Wegmans Food Markets, Inc., 124 F.Supp.3d 360, 374 (D.N.J. 2015). There are two relevant theories upon which to base the ascertainability of loss under the CFA: (1) the out-of-pocket loss theory; and (2) the loss-in-value or benefit-of-the-bargain theory. Id. at 375. To show ascertainable loss under the out-of-pocket-loss theory, plaintiffs must show that the Product was "essentially worthless." Id. To show ascertainable loss under the loss-in-value theory, plaintiffs must show "that the consumer [was] misled into buying a product that is ultimately worth less than the product that was promised." Id.
Defendant argues that because plaintiffs "fail[ed] to identify a specific comparable product" so that the court can calculate the difference in price between what plaintiff paid for the Product and what plaintiff would have paid for the comparable product, plaintiffs' claim under the CFA fails. (See Dkt. 31-1, Memo. at 21-22). The court disagrees.
Plaintiffs allege that they suffered an ascertainable loss caused by defendant's misrepresentations "because (a) they would not have purchased [the] Product on the same terms if the true facts concerning its actual capabilities had been known; and (b) they paid a price premium due to the misrepresentation of the Product." (Dkt. 16, FAC at ¶ 154). Plaintiffs cite both the out-of-pocket loss theory and the loss-in-value theory in alleging that they suffered ascertainable loss. (See id. ). Plaintiffs allege that they would not have purchased the Product had they known about defendant's alleged misrepresentations. In other words and as plaintiffs themselves state elsewhere in the FAC, the product was allegedly "worthless." The alleged loss is ascertainable under the out-of-pocket-loss theory. Therefore, the court need not address the loss-in-value theory.
It is unclear to what "terms" plaintiffs refer when they claim they would not have purchased the Product "on the same terms" had they known about defendant's misrepresentations. (See Dkt. 16, FAC at ¶ 154). The court assumes for the purposes of this Motion that plaintiffs mean that they simply would not have purchased the Product had they been aware of the alleged misrepresentations.
For a third time, defendant reprises its arguments about the causal connections between its alleged misrepresentations and plaintiffs' alleged harm. The court has already addressed the causation point. See supra at § IV.B.
VII. WHETHER THE ECONOMIC LOSS RULE BARS PLAINTIFFS' NEGLIGENT MISREPRESENTATION CLAIM.
Defendant contends that plaintiffs cannot state a claim for negligent misrepresentation because the economic loss rule bars such a claim. (See Dkt. 31-1, Memo. at 22-23). This rule does not apply to plaintiffs' negligent misrepresentation claim. "California law classifies negligent misrepresentation as a species of fraud[ ] for which economic loss is recoverable." Kalitta Air, L.L.C. v. Cent. Tex. Airborne Sys., Inc., 315 F.Appx. 603, 607 (9th Cir. 2008) (internal citation omitted).
VIII. WHETHER PLAINTIFFS ALLEGED PUNITIVE DAMAGES WITH THE REQUISITE SPECIFICITY.
Defendant contends that plaintiffs' request for punitive damages fails to comply with federal pleading standards. (Dkt. 31-1, Memo. at 23-24). However, because "punitive damages are but a remedy, and thus neither constitutes a claim nor pertains to whether any claim has been stated, requests for punitive damages provide no basis for dismissal under Fed. R. Civ. P. 12(b)(6)." Oppenheimer v. Southwest Airlines Co., 2013 WL 3149483, *4 (S.D. Cal. 2013) (collecting cases). Accordingly, defendant's motion is denied as to punitive damages.
IX. WHETHER DISGORGEMENT IS AVAILABLE.
Like punitive damages, disgorgement of profits is a remedy, and thus neither constitutes a claim nor pertains to whether any claim has been stated. See, e.g., In re Tobacco Cases II, 240 Cal.App.4th 779, 800, 192 Cal.Rptr.3d 881 (2015) ("The California Supreme Court has held that, while restitutionary disgorgement may be an available remedy under the UCL, nonrestitutionary disgorgement is not available in a UCL individual action or in a UCL representative action[.]") (emphasis in original) (internal quotation marks omitted). Thus, it is not subject to dismissal under Rule 12(b)(6). Nevertheless, since there appears to be no dispute that nonrestitutionary disgorgement is not available under any of the claims asserted in this case, plaintiffs should remove any language from their next complaint that seeks nonrestitutionary disgorgement unless such a remedy is available pursuant to a claim other the UCL.
X. WHETHER PLAINTIFFS' EQUITABLE CLAIMS MUST BE DISMISSED.
Defendant contends that the court should dismiss plaintiffs' state law equitable claims. (See Dkt. 31-1, Memo. at 25). The court rejects this argument because defendant does not make clear what equitable claims it seeks to dismiss, nor does defendant cite any California appellate authority interpreting California law on this point. (See, generally, id. at 25); see, e.g., In re Watts, 298 F.3d 1077, 1082-83 (9th Cir. 2002) (federal courts are bound to follow rulings of intermediate appellate courts "absent convincing evidence that the California Supreme Court would reject th[ose] interpretation[s]"). The court reminds the parties that "[i]t is not the role of the [c]ourt to make the parties' arguments for them." McClain, 2012 WL 851402, at *3.
CONCLUSION
Based on the foregoing, IT IS ORDERED THAT:
1. Defendant's MTD (Document No. 31) is granted in part and denied in part . The Motion is granted with leave to amend with respect to plaintiffs' allegations relating to standing to seek injunctive relief. The Motion is denied in all other respects.
2. If plaintiffs choose to amend the FAC, they are granted until April 6, 2020 , to file a second amended complaint ("SAC") attempting to cure the deficiencies set forth above. In amending the FAC, plaintiffs should clarify their allegations regarding their standing to seek injunctive relief. No other claims or allegations may be added to the SAC. The court expects that defendant will agree to any amendments that will or attempt to cure the alleged defects.
3. The second amended complaint must be labeled "Second Amended Complaint," filed in compliance with Local Rule 3-2 and contain the case number assigned to the case, i.e., Case No. CV 19-3440 FMO (FFMx). In addition, plaintiffs are informed that the court cannot refer to a prior pleading in order to make their SAC complete. Local Rule 15-2 requires that an amended pleading be complete in and of itself without reference to any prior pleading. This is because, as a general rule, an amended pleading supersedes the original pleading. See Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) ("It is well-established in our circuit that an amended complaint supersedes the original, the latter being treated thereafter as non-existent. In other words, the original pleading no longer performs any function[.]’ ") (citations and internal quotation marks omitted).
4. Plaintiffs are cautioned that failure to timely file a SAC shall result in the dismissal, with prejudice, of their request for injunctive relief.
5. Defendant shall file its Answer to the SAC or a motion pursuant to Fed. R. Civ. P. 12 no later than April 20, 2020 . Defendant's motion to dismiss may only make arguments with regard to plaintiffs' standing to pursue injunctive relief. No other arguments will be considered in a motion to dismiss.
6. In the event defendant wishes to file another motion to dismiss, then counsel for the parties shall, on April 13, 2020, at 10:00 a.m. meet and confer telephonically or in person at an agreed upon location within the Central District of California to discuss defendant's motion to dismiss. Defendant's motion must include copies of all meet and confer letters as well as a declaration that sets forth, in detail, the entire meet and confer process (i.e., when and where it took place, how long it lasted and the position of each attorney with respect to each disputed issue that will be the subject of the motion). Failure to include such a declaration will result in the motion being denied.
Counsel may agree to meet and confer at another time and place without seeking court approval for such an agreement.